# RAM SHANKAR SINGH AND OTHERS v. STATE OF WEST BENGAL

- **Citation:** [1962] Supp. 1 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 1961-01-18
- **Bench:** K. N. \VANcnoo. JC C. DAS GUPTA, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-shankar-singh-and-others-v-state-of-west-bengal-2437
- **Pages:** 24

## Headnote

49
Jur!f trial-Refe•enc~ and Appeal-Powtr of High Gourt1/ can appraise evidence-Gomple.~ qllestions put to accu&<d--1/
and when prejudice the accused-Gode of Criminal Pmcedure,
1898 (V of 1898), as . .142, 374, 428, 423.
The appellants and two others were tried by the Court of
ses~ion sitting ¥:ith a jury for rioting and causing fatal injuries
to c.ertain persons.
The jury brought a unanimous verdict of
guilty against the appellants. The Sessions Judge accepted
the verdict and sentenced them subject to confirmation by
the High Court to suffer the penalty of death. The reference
for confirmation of death sentence and the appeal filed by the
appellants against the order of conviction and sentence were
heard by the Hi~h Court which held that the verdict of the
Jury was vitiated on
account of misdirection on material
questions by the Sessions Judge, and thus disregarded the
v.rdict and proceeded to consider the evidence independently
of
the
V<"rdict
and
after an
elaborate examination
of the evidence found the appellants guilty of the offences
punishable under s. 302 read with s. 34 of the Indian Penal
Code and confirmed t!)e sentence of death.
It was contended that (I) the High Court was not
competent to appraise the evidence after discarding the verdict
of the jury and to confirm the sentence of death after modifying
the order of conviction, (2) where the High C'ourt had held
that the verdict was vitiated, on account of misdirection or misunderstanding of Jaw and had set the verdict aside", thr.n _with
the disappearance of the verdict the order of sentence also
d issppeared and it was not open to the High Court to confirm
the sentence and the High Court was bound to order a re-trial
and (3) that the accused were prejudiced when under s. 342 of
the Code of Criminal Procedure, they were asked complex
questions which could not be understood by them.
Held, that s. 423 of the Code of Criminal Procedure
applies to all appeals before the High Court whether from a
trial by jury or otherwise and when the High Court finds
that the verdict of the jury is vitiated on account of some error
of law or misdirection it has full power to deal with the appeal
in the manner specified in s. 423 of the Code and for that
purpose it may appraise the evidence to decide what course it
1951
October JQ.
1961
Ram Shr.nkar Sin~h
••
S1alt of Wtrt
Br.1(al
.... ~
50
SUPREME COURT REPORTS [1962] SUPP.
t
will follow, ancl was not hound in exrrcising powers undrr
s. 423 to order a retrial; it conld rxerrise any of the po\\·ers
under s. 423(l)(h) .
l!dd, further, that the powers under ss. 374( 1) and 376
of the Code are manifestly of wide amplitude and exercise
thereof is not restricted by the provisions of s. 418( 1) and
s. 423 of the Code.
Irrespective of whether the accu<rd who
is sentenced to death prefers an appeal, tho High Court is
bound to consider the evidence an<l arrive at an indrpendent
conclusion as to the guilt or innC">cence of the accused and thi~
the High Court must do even if the trial of the arcuscd was
held by jury.
In a
caar~ \\'here the death
5.enrence is
in1posed no
sanctity attachrs to the verdict of the jury. The verdict is not
binding if the High Court holds on the evidence that the
order of cr,nviction i!'i not warranted.
On a reference under
~. 374 duty Ls imposed upon the High Court to satisfv itself
that the conviction of the accused i~ justified on the evidencei
an<l t!:at the sentence of death in the circumstances of the case
is tlie only appropriate sentence. When dealing with a reference
under s. 3i4 of the Code the High Court was competent to
otder a retrial but is not bound to do so in every case tried
with jury when the vrrdict of the jury is found to be vitiated
hr.cause of error of law or misdirection.
The right of trial by jury is an important right conferred
upon accused persons in the trial of certain serious offences.
The quostion whether the ar.cuoed having had the benefit of
a trial by jury should because of misdirection

## Text

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..
(1) s.c.R.
SUPREME COURT REPORTS
RAM SHANKAR SINGH AND OTHERS
v.
STATE OF WEST BENGAL
(K. N. \VANcnoo. JC C. DAS GUPTA and
J. c. SHAH, JJ.)
49
Jur!f trial-Refe•enc~ and Appeal-Powtr of High Gourt1/ can appraise evidence-Gomple.~ qllestions put to accu&<d--1/
and when prejudice the accused-Gode of Criminal Pmcedure,
1898 (V of 1898), as . .142, 374, 428, 423.
The appellants and two others were tried by the Court of
ses~ion sitting ¥:ith a jury for rioting and causing fatal injuries
to c.ertain persons.
The jury brought a unanimous verdict of
guilty against the appellants. The Sessions Judge accepted
the verdict and sentenced them subject to confirmation by
the High Court to suffer the penalty of death. The reference
for confirmation of death sentence and the appeal filed by the
appellants against the order of conviction and sentence were
heard by the Hi~h Court which held that the verdict of the
Jury was vitiated on
account of misdirection on material
questions by the Sessions Judge, and thus disregarded the
v.rdict and proceeded to consider the evidence independently
of
the
V<"rdict
and
after an
elaborate examination
of the evidence found the appellants guilty of the offences
punishable under s. 302 read with s. 34 of the Indian Penal
Code and confirmed t!)e sentence of death.
It was contended that (I) the High Court was not
competent to appraise the evidence after discarding the verdict
of the jury and to confirm the sentence of death after modifying
the order of conviction, (2) where the High C'ourt had held
that the verdict was vitiated, on account of misdirection or misunderstanding of Jaw and had set the verdict aside", thr.n _with
the disappearance of the verdict the order of sentence also
d issppeared and it was not open to the High Court to confirm
the sentence and the High Court was bound to order a re-trial
and (3) that the accused were prejudiced when under s. 342 of
the Code of Criminal Procedure, they were asked complex
questions which could not be understood by them.
Held, that s. 423 of the Code of Criminal Procedure
applies to all appeals before the High Court whether from a
trial by jury or otherwise and when the High Court finds
that the verdict of the jury is vitiated on account of some error
of law or misdirection it has full power to deal with the appeal
in the manner specified in s. 423 of the Code and for that
purpose it may appraise the evidence to decide what course it
1951
October JQ.
1961
Ram Shr.nkar Sin~h
••
S1alt of Wtrt
Br.1(al
.... ~
50
SUPREME COURT REPORTS [1962] SUPP.
t
will follow, ancl was not hound in exrrcising powers undrr
s. 423 to order a retrial; it conld rxerrise any of the po\\·ers
under s. 423(l)(h) .
l!dd, further, that the powers under ss. 374( 1) and 376
of the Code are manifestly of wide amplitude and exercise
thereof is not restricted by the provisions of s. 418( 1) and
s. 423 of the Code.
Irrespective of whether the accu<rd who
is sentenced to death prefers an appeal, tho High Court is
bound to consider the evidence an<l arrive at an indrpendent
conclusion as to the guilt or innC">cence of the accused and thi~
the High Court must do even if the trial of the arcuscd was
held by jury.
In a
caar~ \\'here the death
5.enrence is
in1posed no
sanctity attachrs to the verdict of the jury. The verdict is not
binding if the High Court holds on the evidence that the
order of cr,nviction i!'i not warranted.
On a reference under
~. 374 duty Ls imposed upon the High Court to satisfv itself
that the conviction of the accused i~ justified on the evidencei
an<l t!:at the sentence of death in the circumstances of the case
is tlie only appropriate sentence. When dealing with a reference
under s. 3i4 of the Code the High Court was competent to
otder a retrial but is not bound to do so in every case tried
with jury when the vrrdict of the jury is found to be vitiated
hr.cause of error of law or misdirection.
The right of trial by jury is an important right conferred
upon accused persons in the trial of certain serious offences.
The quostion whether the ar.cuoed having had the benefit of
a trial by jury should because of misdirection he ordered to
be retried, or his case be con!lidered on the evidence by the
appellate cou1 t, is one of discretion and not of right.
lleUl, also, that the failure to CC1mply with the provi~ions
of s. 342 of the Code is an irrc'!;ularity and unleS! injustice is
sho,vn to have resulted therefrom a mere irregu)arity is by
itself not sulfirient to justify an order of retrial. The appellate
court must alway~ consider whether by reason of failure to
comply with a procedural provision, which docs not affect the
jurisdiction of the court, the accu~ed have been materia11y
prejudiced.
Alxlul Rahim v. King Emperor (1946) L. R. 73 I. A. 77
ancl Aj""'r Singh v.
Stale of Punjnb (1953] S. C.R. 418,
referred to.
CRIMINAL APPELLATE J1rn1~DICTION: Criminal
Appeal No. 71 of 1961.
Appeal from the judgment and order dated
January 18, 1961 of the Calcutta High Court in
I
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(1) S.C.R.
SUPREME COURT REPORTS
51
Criminal Appeals Nos. 314. 318 and 319 of 1960
and Reference No. 3 of 1960.
Nur-ud-din Ahmed and Pritam Singh Safeer,
for the appellants.
D. N. Jfnl.:herjee, P. K. Mukherjee and P. K.
Bose, for the 1·0spondcnt .
1961. October 10.
The Judgment of the
Court was delivered by
SHAH, .J.-At 9-:lO P. ~r. on March 21, 1959,
four pcrsons-Rampiari, Himlal, Shyama Prosad
Missir and Surajn:tth DuJ,cy-all residing within
Police Station Golabari in the town of Howrah
suffered incised and p1m('f·ured injuries and died
in consequence thereof. The appellants and two
others were tried b..foro the Extr1t Additional
Sessions Judge, Howmh with a jury for rioting and
causing fatal injuries to these four victims and
thereby committing offences punishable under
ss. 148, 302 and .302 read wit.h 149 of the Indian
Penal Code.
The jury brought a unanimous verdict
of guilty against appellants Ram Shankar Singh,
Bimala and Sudama Singh for offences punishable
under ss. 148, 30:! and 302 read with 149 of the
Indian Penal Code and against R:imnarayan Missir
for offences punishable under ss. 148 and 326 read
with 149 of the Indian Penal Code and a verdict of
not-guilty against Depa.Ii wife of Ramnarayan Missir.
The 8essions Judge accepted the verdict and
sentenced the appellants, subject to confirmation
by the High Court, to suffer the penalty of death
and Ramnarayan Missir to suffer rigorous imprisonment for 10 years, and acquHted Depn.li.
The
reference for confirmation of death sentence and
the appeal filed by the appellants and Ramnarayan
Misefr against the order of conviction and sentence
were heard by the High Court of Judicature at
Caloutta. The High Court held that the verdict
of the jury was vitiated on aceount of misdirection
by the Sessions Judge, and after an elaborate
examination of the evidence found the appellants
Ram Shankar and Bimala guilty of offences nnder
8 , 302 re~d with 34 of the Indian Penal Code for
causing the death of Hampiari and Hiralal. The
1961
Ram Shankar Singh
v.
Stale of West
Beniol
Shah J.
J961
Ram 811'l.1~1r SitJth
v.
Statt of Wirt
Htlt_!Of
Shafi .T.
52 SUPREME COURT REPORTS [196::!] SOPP.
High Court
l\l~o fo11nr! a ppe.llant Ram Shankar
guilty of murder for causing the death of Surajnath
Dubey by stabbing him with a knifo, n.nd appellant
Sudiima Singh for
cn.•1sing t.he death of Shyama
Pro!lad Missir by stabbing him with a knife, and
confirme<l tho sentence of death pa,Red by the
Session9
Ju.igc.
The High Court.,
acquitted
J:tamnarnyan Singh oft he offoncc of gri,~vous hurt
of which he was C'mvieted by the trinl court. With
certificate grankd by the ·High Court this appeal
is preferred by th<' thr~e appdlants.
Two hustcl'A in the town of Howr8h-No. 7
l\Iadhab Ghosh
Road
and
Xo. 7
Tikiapara
Road-are snparnted by a common courtyard.
Ram
Shankar, Bimitla,
Ramnary.~n Singh and
Dcpali lived
i11 No. 7
Madhah
Ghosh
Road.
Ramrlco Ahir, his wife Rampiari and son Hiralal
lived in a room in i Tikiapara Road and Shyama
Prosad :\Iissir lived in another room in that bustee.
Surajnath Dubey lived in a room in No. 9 l\Iadhab
Ghosh Hoar!.
At ahout I.I A. )f. on March 21, 1959
thoro was an altercation in tho common courtyard
between Ramnarayan MiFsir, his wifo Dllpali and
Ram Shank~r'H wife Bimaln on the one hand and
Ramdeo, hiH wife Rampiari and his son Hirn.Jal on
the other. Thiil attracted the attention of several
residrmts of the locality,
ancl the parties were
pacified by Jadunundau l~oy urn.I .Joy Lal Choudhmy
and wNe pursuaded to retire to their respective
room~. At about i
P. M. on the samo <lay, after
Rim Sh1nkar returned home there was another
altnrcatiun and Jadunandan and ot.hl'rH ngain inter·
wmerl and pacifio,d the parties, who were quarclling.
Hiralal and his mother Hampiari return<·d to their
room and apprehending an as:iault they chained the
dO'•r from within. It was the case for the State
t.hat at about 9 P. M., 5 to 7 "Hindusthani" came
armed with iron rods and knives to 7 llfadhab Ghosh
Ro:irl and joined Ram Shankar, Sudama Singh,
Rimal", Ramnarayan Missir and Dcpali who were
also armed with lethal weapons, such as knivns,
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(l) S.C.R. SUPREME COURT REPORTS
53
swords and iron-rods.
The whole party then
proceeded to No. 7 Tikiapara Hoad and Sudama
Singh broke open the ·door of the room of Ramdeo
Ahir. Ram Shanlmr and his wife Bimala then
entered the room, Sudama Singh sta;1ding outside-.
Ram Shankar and Bimala attacked Rnmpiari and
Hiralal and stabbed them to (kath. On hearing
the sh1·ieks of Rampiari and Hiralal, Shyama Prosad
Missir proceeded towards the courtyard, but was
st'1:>bod by Sudama Singh in the chest with a knifo
and collapsed on the spot. Sudama Singh was
held by J adunandan Roy, but was rescued by his
supporters who beat Jadunandan Roy with iron
rods.
At this juncture Ram Shankar and Bimala
came out of Ramdeo's room with their knives and
clothes stained with blood. Surajnath Dubey who
reached the room of Ramdeo was stabbed by Ram
Shankar in his abdomen.
Surnjnath Dubey ran a
short distance pressing his abdomen with his hands
and fell down
near tho
dispensary of one
Dr. Dhruba Dns Pandey where from he was removed
to the Howrah General Hospititl. He succumbed
to his injuries on March 2il, UJ59.
l{amnarayan
Missir was present in the courtyard at the time of
this assault aud carried a sword in his hand and his
wife Depali can ied au iron-rod.
After
killing
R<1mpiari, Hiralal, Shyama Prosad M.issir and causing
injuries to Surajn<tth Dubey, Ham Shankar and his
supporters fled alq_ng the Madhab Ghosh Road.
Tho sword carried Ly lfamuarnyan was snatched
away by Jiban Prasad Sett and in doing so the
latter received a sligl1t injury. Harnnarayan au<l
his wife Bimala and others were chased by a large
crowd, but many of the miscreants made good their
escape. Ramnarayan and his wife Depali took
shelter in the house of one Lakshman Mahato.
Ram Shankar, Bimala and Sudama Singh entered the
godown of Bhola Singh at Sailcn Booe Road.
In the meantime, the officer incharge of the
police station having received information on the
telephone proceeded to Bhola Singh's godown and
1961
l~am Shankar Singh
v.
Stale of rt 'est
Bengal
Shah J.
1961
Rain Shanl..nr Singh
v.
Stnte of Jl'e.st
Bengal
54 SUPRE1111D COU!l.T ltEPOHTS [Hl62.\ SlJPP.
arrested :::ludt1ma S,ingh and Bimo,la., ltam ShankaF
having i·11u away fro•n the godown.
Sudama Singh
and Bimal:' -~ve,re :brought ·to the scene of offence
al'!d injur,ie& on the de;\d-bodies ofRJLmpio,ri, Hiralal
Shyama Prasad Missjr, were examined. Inforrn1ition
of th,c qffence was then re.corded.
At tho ti'ia} of, ~he . appellants and oth~r
•weus<1<1, ·evidt'nce· was led ·in' support ·of the case
fo1,.tho :)tato that quarrels took place at JI A .'ill.
ahd 7 p. 111. on the' ''day in
que~tioil between
Ra:mP,iari and Hiralal dn the one. hail'c\ and Bim<ila,
Ramnarayan Singh· am;! Depali on "the other and
that at the quarre,l at 7 P. M. Ram Shankar was
also :present.
EviP,~nco was also led to ah ow that
shortly after 9 P: t.r.
Ram .Shan~ar, his .'\'ife
Bimala a'ceoinpanicd
'by ·Suclama Singh- Ram
Shankai"s cbusin-Ran,marayan Missir and his wife
Depali. and five
or s.even
Hindusthani men
approaolictl the court;irard 'in front of No. 7
Tikiapara R<lad .and SuBama Singh brdk~open the
door of·the room"of Ra:thdeoAhir and Ram Shankar
'and his ·Wife Bimala entered the'room armed with
knivcs·and emerged frdm the ro'em sometime late.r
with kniV'eB stained witlr b1odd. Evid@ce was
also led tha~ Sb~yama P1·osad Missir w'aa stabbed
by .Sudama Singh arid Surajnath Dubey by Ram
Shankar in the presence of witnesses. The State
a!So led evidence ,that the fleeing miscreants were
chased by· the residents of thli locality and that
Bimala and Sudama Singh . were arrested in the
go'down of Bhola Singh.·
'Before the High 'Court the. v'.cr<lict of tl\c
jury was suu<;essfully a~sailed by counsel for the
appellants. Tho learned. Judges of tho High Court
held ,that tlie . verdict }Vas vitiated on account of
misdire9ti_on on material questions, and they·accordingly dieregarded the
verdict and proceeded to
consider the evidence indr.pendcntly of the verdict.
They held that appellants· Nos. I. and 2-Ram
Shankar and his wife Bimala-were guilty of
offences punishaLle under s. 30'.? rPacl wifh 34 ('f
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(l) S.C.R.
SUPREME COURT REPORTS
55
the Indian Penal Code for causing in futherancc
of their common intention death of Rampiari ann
and Hiralal in the room of Ramdeo Ahir.
The
High Court also held Ham Shankar guilty of causing the death of Surajnath Dubey, and Sudama
Singh of causing ihe death of Shyama Prosad.
J\llissir by st1tbbing him in the chest.
The first question that falls to be determined
is whether the High Court was, in the circumstances
of the case, competent to appraise the evidence
after discarding the verdict of the jury and to
confirm the sentence of death after modifying the
order of conviction.
Section 423 of the Code of
Criminal Procedure invests the High Court hearing on appeal against an order of conviction or
acquittal passed by a Subordinate court of criminal
jurisdiction with certain powers.
These powers
are exerciseable in appeals against orders passed
in proceedings which are tried with or without
the aid of jury. Bys. 418 (1), an appeal, in a case.
tried by jury, lies only on a matter of law.
But
if the High Court on a consideration of the materials
on the record reaches the conclusion that the verdict
in a case tried with jury is erroneous owing to
some misdirection by the Judge or misunderstanding of the law by. the jury, the High Court has the
power to reverse the finding and to acquite or
discharge the accused or to order retrial or to
alter the finding maintaining the sentence, or,
with or without altering the finding, to reduce
the sentence, or with or without such reduction
and with or without altering the finding to alter
the nature of the sentence. The High Court may
in an appeal against an order of acquittal even
in a case tried with jury reverse the order .and
direct that further inquiry be made or that the
accused be retried or committed for trial, or the
High Court may find the accused guilty and pass
sentence on him according to law. These powers
can be effectively exercised only if the High
Court has the power to appraise the evidence and
1961
llom Shankar Singh
v.
~tale of H'esl
Btngal
Shah J,
IS6/
&v11 Sha11l:a1 Singh
V.
S1111t fl/ h·tat
Bengal
%J/1J.
56 SUPREME COURT REPORTS [1962) SUPP.
~
that is made clear by sub-s. (2) of s. 423, which
by the clearost implication cnac:ts that the Appellate Court mav alter or roversc the verdict., if it
be of the opi~ion that it is erroneous owing to
a misdirection by the .Judge, or misunderstanding
of the law by the jury. The power to direct retrial or to cousider the case on tl10 merits being
conferred on tho High Court iu appcala again8t
orders of acquittal as well as eonvietion, it c1111
effectively be exercised only if the High Court is
competent apart from the verdict to appraise the
value of the evidence on which the order
of
t.he trial court is founded.
The High Court is
not bound when it arrives at the opinion that
the verdict of the jury is vitiated to interfere with
tho verdict.
The Court is, therefore, competent
in appeals against orders of conviction and sentence
or against orders of acquittal even in cases tried
with jury to order a retrial or to · maintain the
conviction and sentence on a reconsideration of
the evidence.
Counsel for the appellants dG~B
not challenge this interpretation of the powers of
the High Court under ss. 418 and ,123 of the Code.
In Abdul Rahim v. Emperor (') in dealing
with the powers of a High Court in a reference
under
s.
374
for
confirmation
of
death
sentence
passed
by the
Court
of
Session
n a trial held with jury, where the verdict of the
jury was found to be vitiated on the ground of
admission of evidence, which, in law, was inadmissible, the Judicial Committee of tho Privy Council
observed:
"Where inadmissible evidence has IJcen
admitted in trial by jury, the High Court
on appeal may, after excluding such evidence, maintain a conviction, provided tho
admissible evidence remaining is
in the
opinion of the Court sufficient to establish
the guilt. of tho accused.
The High Court
is not bound to order retrial in Buch cases."
(I) (1946) L. R. 731. A. 77.
l
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(1) S.C.R.
SUPREME COURT REPORTS
57
The ,Judicial Committee also observed,
"The primary duty of the Court on an
appeal is indicated in s. 423(1). It is to consider with the record before it whether there
is 's11fficient ground for interfering'. In a trial
by jury, that there has been a misdirection is
not of itself a sufficient ground to justify interference with the verdict. The Court must
procee'l to consider whether the verdict is
erroneous
owing to the misdirection or
whether the misdirection has in fact occasioned a failure of justice. If the Court so finds
then it bas a plain justification for interfering
and indeed a duty to do so."
The Judicial Committee also observed,
"An appeal may be entertained only on
a question of law, but once it has been held
by the Appellate Court that there has been
an error in law it is open to it to 'interfere'
with the jury's verdict and if it thinks that
the error in law affords sufficient ground for
doing so it will then proceed to consider
whioh of the various forms of 'interference'
it will adopt. Section 423 clearly indicates
that within its meaning a misdirection by the
Judge falls within the category of error in
law, for it contemplates in ~ub-s. (2) that an
appeal is competent on the ground of misdirection. But a misdirection having been found
to have occurred it is not necesearily a ground
for interference. It may have been of a more
or less trivial character. But if it has led to
an euoneous verdict being returned or to a
failure of Justice the statute plainly indicates
that a case for interference has arisen. What
form the interference shall take is left to the
Court which is given a wide discretion. It need
not order a retrial. It may for example acquit
the accused. To order a retrial might well
operate injustice in readily conceivable circumstances."
1961
RGm Shankat Sinzh
v:
Stalt of West
Beng•I
Sh•h J.
Rat11 Shankar Si11gh
v,
Sla 1e of !Ve.st
Btnfal
Shah].
58 Sl.JPRg'.\1E COURT REPOHTS [1!162] Sl"PP.
\Ve arc tllt'refore of the or.inion thats. 42:l
;\pplies to all appeals before th 1 High Court wlwthcr
from a trial by jury or otherwise and when t.lw
High Court fiuds th<Lt the verdict of the jnry is
\'itiatecl on a<"count of ~omc defect of law or misdirectio11 it has full power to cle:il with the appeal
i11 the manner spe<'ifiecl in s. 423 and for that purpose it may appraise the evidence to decide what
course it will follow.
But it is contended that where the Court of
~t·ssion in a trial held by jury sentences the actuscd
to suffer thP. penalty of death a11d th<> <'ase is ,ubmittcd to the High Court uml~r ff. :li4 of the Cocfo
of Criminal Proe,edure for confirmation of sentence
and the accused also appeals against the order of
convictirrn and sentence, the Hi)!h Court is bound
to hear and decide th'l appeal in i.he first instance,
and if on a consi<h·ration of the appeal, the High
Court holds that the verdict was vitiated on account
of misdirection or misuuderotauding of the law on
the part of the Jury, the verdict mus~ be set aside
and with the disappearance of the verdict disappears
the or<ler of sontcnce, arnl it ia not open to the
High Court to confirm the s~utence of death on a
reappraisal of the evidence. The High Court is
bound in these cases, says counsel for the appel·
·!ants to order rttrial of the accused.
An appeal under sub-s. (I) of s. 418 of the
code lies on a matter of fiwt as well as on a matter
of law, except where the trial is by Jury, in which
<·ase the appeal lies on a matter of law only. But
that is not the only provision which invests the
High Court with jurisdiction to deal with the case
of an accused person when he is tried by jury and
is scn•cnccd to suffer death. The sentence of death
passed hy the Court of Session in a reforence under
s. 3i4 of the code cannot be executed unless it be
confirmed by tho High Court. Under s. 376 the
High Court dealing with a oase submitted to it
under s. 374 ( l) may confirm the sentence, or pass
•
1
•
•
(1) S.C.R.
SUPREME COURT REPOR'l'S
59
any other sentence warranted by law, or (b) may
annul the conviction, and convict the accused of
any offence of which the Sessions Court might have
eonvicted him, or order a new trial on the same
or an amended charge, or ( c) may acquit the acc1rned person. These powers are manifestly of wide
amplitude, and exercise thereof is not restricted by
the provisions of s. 418 (1) and 423 of the Code of
Criminal Procedure. Irrespeptive of whether the
accused who is sentenced to death prefers an appeal, the High Court is bound to consider the evidence and arrivo at an independent conclusion as
to the guilt or innocence of the accused aud this the
High Court must do even if the trial of the accused
was held by jury. In a case where the death sentence is imposed no sanctity attaches to the verdict
of the jury. The verdict is not binding if the High
Court holds on the evidence that the order of conviction is not warranted. Indeed, duty is imposed
upon the High Court
to satisfy itsdf that the
conviction of the accuser! is justified on tho evidence,
and that the sentence of death in the ein:umstances
of the case, is the only appropriate sentence.
It has been the uniform practice of the High
Courts in India to hear the reference for confirmation of senteuce of death and the appeal preferred
uy the accused together rind to deal with the merits
of the case against the accused in the light of all
the material questions of law as well as fact and
to adjudicate upon the guilt of the aceus€d and the
appropriateness of the sentence of death. In this
case also, the High Court did hear the reference and
the appeal together. On the view that the verdict
of the jury was vitiated, the High Court was obliged to consider what order in the circumstances of
the case was appropriate. The High Court was not
bound in exercising powers under s. 423 to order
a retrial; it could exercise any of the powers under
s. 423( 1 )(b ). The High Court had also to consid~r
what order should be passed on the reference under
s. 374, and to decide on an appraisal of the evidence
1!1(i1
U11111 Sli1,1,kor Singh
v.
S111tt nf 11·1!1
Br11t1,!
Shilh ].
19Cl
Ram S!wikar Si•1gh
••
Staft of I~·,,,
B1ncuJ
SiuJh].
60 SUPREME COCltT REPORTS [l!i(i2) SUPP.
"hcth<>r the onl<:r of conviction for the off<•nces
for which the acctisctl wt>rc cnnviet<'tl was justi1i<'d
and whether, h:winl.! regard to the circumstances,
the 8Cnl<'nce of death was the appropriat~ srnt<,nce.
'Jlw High Court is nf course comprtent wh1·n deali11g with a rcfl.'rcn<'e under s. 3i4 to order a retrial
buL the High Court i8 n"t bounrl to clo rn in every
case tried with jury when t.he vcrrlict of the jury is
found to be vitiated because of error of law or mis-
<lircction.
The right of trial by jury is an important right conferred upon accused persons in the
trial of certain serious offence&; but un<ler our jurisprudence the right to trial hy jury is a creation of
st11tute and the question whether the accused in a
given case having ha<! the benl.'fit of a trial by jury
should because of misdirection be ordered to be
retried, or his case be considered on the evidence
by the appellate court, is one of the discretion and
uot of right.
The High Court has, in the present
case, exercised this discretion and we see no adequate ground to interforo with tho exerciao of that
discretion.
Learned counsel for the State
invited our
attention to judgment of this Court in Bhupati
Bhusan Bi8Wa8 v. 1'he State of West Bengal('), in which
thio Court set aside the order passed by High Court
directing retrial of a case which was tried with jury,
in which the verdict was vitiated, and ordered that
the High Court should hear the case on th•~ evidence.
The Cou1t in that castJ obsen-ecl, "In the circumstances of this case we are of the opinion that the
High Court was in error in remanding the case for
retrial; it should have followed the procedure laid
down in the Privy Council case and should have
gone into the evidenc~e and determined for itself
whether the accused were guilty or not." It ia
mqnifl'st that this Court vacated the direction of
the High Court ordering retrial in the special circumstances of the case: the Court did not lay down any
general rule that in every ca.so where the verdict
(ll Cr. A. 113of1956, decided on Febru,ry 14, 1957.
'
1
-~ •
(1) S.C.R.
SUPREME COURr REPORTS
61
of the jury in a case where the accused has been
convicted at a trial held with jury is found to be
vitiated the High Court must not rPmand the case
for retrial.
Counsel for the appellants, eo11tended that in
this case there had been no proper kial of the appellants before the Court of Session and therefore the
order of the High Court should be set aside and
retrial ordered. Counsel strongly relied upon the
manner in which the examination of the accused
under s. 342 by the Court of Session was conducted
and submitted that the Sessions ,Judge asked comp·
lex questions to each of the accused relating to
several distinct pieces of evidence brought on the
record. For instance, Ram Shankar asked "You have
heard the evidence as well as the cross-examination
of the prosecution witnesses. They have stated
that you together with your wife Bimala Devi,
brother Suda.ma Singh, Ramnarayan Missir and his
wife Depa.Ii Missir and 5/7 other Hindusthani men·
armed with iron rods, daggers and swords formed
an unlawful assembly at No. 7 Tikiapara Road on
the 21st March, 59 with the intention of murdering
one Rampiari and her smi Hiralal and that you
intentionally killed Rampiari and Suraj Dubey of
9 Madhab Ghosh·Road with a knife.
Do you want
to say anyt.11ing in your defence in connection with
this charge?'' Similar questions were also asked
of accused Bimala and Sudam~ Singh. With regard
to the events subsequent t.o the murder of Rampiari,
Hiralal and Shyama Prosad l\Iissir another complex
question was asked. It is urged that the examination
of the accused held in this m<J,nner was not in
accordance with s. 3i2 of the Code ot Criminal
Procedure, the terms whereof are mandatory· and
the Sessions Judge having failed to comply therewith the accused it
must be presumed were
prejudiced. It was submitted in support of this
contention that if the several components of the
questions which dealt with independent m~tters on
which evidence was led by the prosecution had
196/
Ram Slumk4r Sin.t{h
v.
St.Jlt of r·Ytst
Bv1znl
Shah]·
1961
Ram Shank"' Singli-
.
v.
Stn:e of fVt"st
Bmgo.l
62
SUPREME COURT REPORTS (1962] SUPP.
been split up, the accused might have given some
explanation acceptable. to the jury. The Sessions
Judge having failed to do so, the trial must be
regarded as vitiat«';d.
Shah J.
In our view, the learned Sessions judge in
rolling up several distinct matters of evidence in a
single question acted irregularly. Section 342 of
.. · the Code of Criminal Procedure by the first sub-section provides, in so far as it is material : "For the
purpose of enabling the accused to explain any .
circumstances appearing in the .evidence against
him, the Court .............................. shall ........ .
... .. .......... question him generally on the case after
the witnesses for the prosecution have been examined and before he is called on for his defence."
Duty is thereby imposed upon the Court to.
question the accused ganerally in a case after the
witnesses for the prosecution have been examined
to enable the accused to explain any circumstance
appearing
against him. This is a
necessary
corollary of the presumption of innocence on which
our criminal jurisprudence is founded. The object
of the section is to afford to the accused an opportunity of showing that the circumstance relied upon
by the prosecution which may be prima fade
against him, is not true or is consistent with his
innocence. The opportunity must be real and adequate. Questions must be so framed as to give to
the accused clear notice of the circumstances relied
upon by the prosecution, and must give him an
opportunity to render such explanation as he can
of that circumstance. Each question must be so
framed that the accused may be able to under·
stand it and to appreciate what use the prosecution
desires to make of the evidence against him. Examination of the accused under s; 342 in not inten·
<led to be an idle formality, it has to be carried out
in the interest of justice and fairplay to ·the
accused: by a slipshod examination which is the
result of imperfect appreciation of the evidence,
< ·,
•
•
(l) S.C.R.
SUPREME COURT REPORTS
63
idleness or negligence the position of the accused
cannot be permitted to bemade m0re difficult than
what "it is in a trial for an offence.
This Court
pointed out in Ajmer Singh v. State of Punjab(')
that "it is not a sufficient compliance with the
section (s.342 Code of Criminal Proeedure) to gen~r
ally ask the accused that, having heard the prosecution evidence what he has to say about it. He
must be questioned separately about each ma.tcrial
circumstance which is intended to be used against
him.
The whole object of the section is to afford
the accused a fair and proper opportunity of
explaining circumstances which appear against him
and the questions must be fair imd must be couched
in a form which an ignorant Ol' illiterate person
may be able to appreciate anrl understand." The
examination by the Sessions Judge of the appellants was perfunctory, but as observed in Ajmer
Singh's case, every error or omission in complying
with s. 342 docs not vitiate the trial. "Errors of
this type fall within the category of curable irregularities and the question whether the trial has been
vitiated depends in each case upon the degree of
error and upon whether prejudict1 has been or is
likely to have been caused to the accused". To
the questions asked by the judge, the answers given
by the appellants were either "I am innocent" or
"tho story is false".
Failure on the part of the
Ses•ions Judge to split up the questions so as to
deal with each distinct feature or matcria I piece of
evidence
sepafately, however, does not, in the
circumstances as of the present case, justify an inference that prejudice was thereby caused to the appellants. Counsel for the appellants has not been able to
suggest, having regard to the line of cross-examination !ldopted and the criticism of the evidence of
the prosecution witnesses offered by him, what
explanation besides completo denial of the prosecution
story, the appellants could have offered
in answer to the questions relating to the different
circumstances and pieces or features of evidence
(II [1953] S. C.R. 418.
19f.1
Ram Shank11r S £nfh
v.
Stal1 of fl'tsl
Be11gal
S/wh ] .
1961
Ram Slrankar Sinzh
v.
Stal• of H'tJI
Btngal
Sha/,].
64 SUPREME OOURT REPORTS
[1962] SUPP.
on which the prosecutio,1 relied. It iR true that
the prosecution strongly relied upon two circumstances against Bimala (I) that when she came out
of the house of Ramdeo Ahir, she had a blood-stai·
ned knife in her hand and (2) that when she wni<
arres!Rcl from the go<lown of Bhola Singh; the knife
was in her hand. To these mattors of evidence
attention of the accused Bimala does not appear
to have been invited.
Similarly, attention of Ram
Shanker to the evidence that when he <'&me out of
the ro;>m of Ramdeo Ahir, he had a knife in his
hand was not inviter!. But we have already obtier·
vcd, beyond a bare denial, the learned counficl
was unable to suggest any other answer which the
accused could give to these pieces of evidence evrn
if they had been sp<-cifically put to them. It is
also to be noticed that the plea that the appel·
!ants had not b~en properly examined under s. :~42
of the Code of Criminal Procedure was not raised
before the High Court : at least there is no referenr'e
in the judgment of the High Court to any sw·h
ar(nlment.
P~ilure to comply with the provisH ns
of s. :H2 is an irr<'gularity; and
unless injustice
is shown to have resulted therefrom a mere irregul·
arity is by itself not sufficient to justify an m der
of retrial. The appellate court must always consider
whether by reason of failure to comply with a prn·
cedural provision, which does not. affect the juris lir·
tion of the court, the accused have heen materially prejudiced. In the present case, we are of the
view, having regard to the circnmsfanceB, that the
appellants have not been prejudiced, because of
failure to examine thorn strictly in compliance of
the terms of s. 3!2 of the Code and that view is
strengthened by the fact that the plea was not
raised in the H i~h Court by their counsel who had
otherwise
raisecl
numerous question in support
of the case of the appellants.
H.ampiari, her son Hiralal, Shyama Prosad
./11issir and 8urajnath Dubey received fatal injuries
shortly after 9 P. ~I. on the night of March 21,
•
•
I
<(
..
(1) S.C.R. SUPREME COURT REPORTS
65
1959. Rampiari had on her person two incised
injuries on the left side of chest cutting through the
ribs. Hiralal had six injuri11s on his chest, abdomen and arms-four incised injuries and two punctured. Shyama Prosad Missir had one injury on the
chest piercing
the thoracic cavity. Surajnath
Dubey had an
injur~ in the abdomen. These injuries were in the ordinary course of nature sufficient to cause death. The appellahts contend that
they were not responsible for the injuries to these
victims.
We were taken through the entire evidence
which is material to the case of the three appellants by the learned counsel for the appellants. In
respect of the first incident which took place in the
morning of the fateful day, there is the evidence
of Jadunandan Rao which is corroborated by the
statement contained in the First
Information
Report, and also corroborated by the statement of
Ramdeo-husband of Rampiari. The second incident,
took place at about 7 P. M.
The witnesses in
connection with that incident are Jadunandan Roy,
B. P.Singh and Jangli Bahadnr. It appears from
the evidence of these witnesses that the partiesRampiari and Hiralal on the one hand and Ram
Shankar,
his wife Bimala Devi, Ramnatayan
Missir and his wife Depali on the other-were
quarrelling and were pacifieci and Rampiari and
Hiralal were persuaded to ~o back to their room
and bolt it from inside. The High Court has believed
the evidence relating to these two incidents and we
see no reason for not accepting it. The third incident
consists of three phases (I) assault upon the room
of Ramdeo Ahir, the breaking open of the door and
attack on Rampiari and Hiralal resulting in their
death; (2) assault on Shyama Prosad Miseir by
Suda.ma Singh and (3) assault on Surajnath Dubey.
The evidence discloses that the common courtyard
between 'i Madhab Ghosh Road and 7 ·1 ikiapara
Road was lit up by the light of an electric lamp in
the houae of Joy Lal Choudhury, two of the
19dl
llam Shankar Singh
v.
State of West
Bengal
Shah].
1961
Rom 8"4r1kar s;.,~
v.
St•t1 of Ii '1JI
B11if<I
Sh•h ].
66 SUPREME COURT REPORTS fl962) SUPP.
windows of the first floor hcir.g opt-n. There is
also the f>videnco that in the room of Ramdeo on
the occasion in question a kerosene lantern was
burning. It is so rccite<l in the First Information
Report and tho kerosene
lantern was seen Ly the
Sub-Inspector of Police when he arrived on the
scene of offence. It cannot be disput,,d, therdore,
that the scene of offence was full:v lighted at the
time of the assault and the witneS8PS could identifv
the assailants. About the assault upon the roori:i
of Ramdeo Ahir and the entry of appellants
Ram Shankar and his wife Bimala De\'i into the
house after the door was broken open by Sudama
Singh, there is the evidence of as many as Fix eye
witnesses-they
are
Jadunandan
Roy, Ram
Chandra Goa.la, Tribeni Jadab, SukdeoMajhi, H<;sila
Jadab and Sundar Jadab. The l•'irst Information
Heport lodged by Jadunandan Roy substantially
gives tho same story. Jabunandan Roy has deposed
to the entire story of the breaking open of the doror
by Suda.ma Singh and the rntry by Ram Shankar
and Bimala into the room, the shrieks of Ram piari
and Hiralal and about Ram Shankar and Rimah
coming out of the room after stabbing R amp1ari and
Hiralal. Ram Chandra Goa.la stated that whC'n he
came near the house of Ramdeo he found Ram
Shankar and Ilimala coming out of the room with
knives in their hands. Tribcni Jadab stated that
he saw Sudama Singh breaking open the door of
Ramdeo Ahir with aa iron rod, . that thereafter
Ram Shankar and Bimala entered the room each
carrying a knife, that he heard shrieks of Ram piari
and Hiralal and that after some time Ram Shankar
and Bimala came out of the room with knives. Sukdeo
Majhi stated that he saw Ram Shanknr and Bimala
coming out of Ramdeo's room with knives in their
hands. There is a.lso the evidence of Hosila Jadab
who stated that he saw Ram Shankar and Bimala.
ooming out of Ramdeo'e room with blood·staine<l
knives. Sundar Jadab has stated that when he
reached the courtyard he found Sudama Singh
~•
>
(1) S.C.R.
SUPREME COURT REPOR'rS
67
bro-tking open the door of Ramdeo's room with
an iron rod and thereafter Ra,m Shankar and his
wife getting into the room with knives in their
hands, and he heard Hirahl and his mother shouting for some time.
The High Court has accepted
the testimony of these witnesses. It is true that
,Jadunandan Roy stated t ha.t he ~aw through the
open door of the room of Ramdeo Ahir, after it
was broken open, Ram Shmikar stabbing Rampiari
and Bimala sta,bbing Hirnhl and the High Court
n•garded this part 1 J the Rtr·ry as an embellishment
whirh must be di~c1uded. The mere fact that the
witness J adunandan Hoy had improved hi~ story
will not by itself bP sufficient to disregard his
testimony in its entirety.
About the assault on Shyama Prosad Miesir,
when he tried to intervene, there is the evidence of
Jadunandan Roy, Triheni Jadab, Sukdeo Majhi,
Hosila ,Ja1fab and Sundar J adab.
E:ich of these
witnesses has deposed that Shyama Prasad Missir
-
who intervened was stabbed by Sudama Singh in
'the abdomen. Ab'.mt the assault on Snraj Dubey
bv Ram Shankitr, there is the evidence of Jadunandan Roy, Trib('ni J adab and Hosila J adah.
In the cross-examination of these witnesses for
the prosecution, it was suggPsted that there was a
free fight between some" Hin.dnsthanis" and "go11la•",
in the course of which injuries may· have been
suffered by Rampiari, Hintlal, Shyama Prosad
Missir and Suraj Dubey. But Rampiari an<l her
son Hiralal were found dead in tlwir own room: the
dead bodies were lying on a cot.